Prop. 8 cases joined, moving faster

Posted Mon, November 21st, 2011 7:51 pm by Lyle Denniston

Moving to speed up its coming rulings on California’s ban on same-sex marriage, the Ninth Circuit Court on Monday joined two of its pending cases that seek to revive that measure — Proposition 8. In a brief order, a three-judge panel consolidated cases that both carry the case title Perry, et al., v. Brown, et al. (Circuit dockets 10-16696 and 10-16577). Both are challenges, but for different reasons, to a federal District Judge’s ruling in August 2010 nullifying the ballot measure adopted by the state’s voters in 2008.

Under Proposition 8, California’s state constitution limited marriage to a man and a woman, thus overturning a state Supreme Court ruling that had established a state constitutional right of gay and lesbian couples to wed. The measure has been under challenge in a sweeping federal court case that almost all observers expect to go to the Supreme Court, in one form or another. If the challenge were to succeed ultimately, it could open up marriage across the nation to same-sex couples. It might also end as a less sweeping ruling that might apply only to California, and it even could end without a ruling on Proposition 8’s constitutionality.

The ban was struck down by a District Judge who has since retired, Vaughn R. Walker of San Francisco, in a lawsuit filed by two same-sex couples. His ruling is on hold while appeals proceed through the Ninth Circuit, so the ban is still in expect. One of the appeals is a plea to overturn the Walker decision on the merits (docket 10-16696). The other (docket 11-16577) is also an attempt to overturn Walker’s ruling, but with the argument that he should have disqualified himself from ruling on the case — and that, as a result, his ruling must be vacated — because he was not an impartial judge. The second challenge is based on two facts and a theory. The facts are that he is a gay person and that he has been in a long-term relationship with a partner of the same sex. The theory is that he would likely be interested in marrying his partner, and thus would benefit from his own ruling against the marriage ban.

The judge who succeeded Walker on the case, Chief Judge James Ware of San Francisco, has rejected the claim of partiality.

Both cases involve appeals by the sponsors and promoters of Proposition 8. Those backers, as well as the same-sex couples who had challenged the ban, had told the Circuit Court that they were in favor of consolidating the two cases, so long as it did not result in a delay in the Circuit Court’s review. By agreeing to consolidate the two proceedings, the Circuit Court at least implied that there would be no delay by going forward with them together.

The submission of written briefs has been completed in both cases, and the Circuit Court panel has held a hearing on the constitutional question. Whether it will now hold a hearing that includes review of the challenge to Judge Walker’s staying on the case seems unlikely. Thus, the panel could move on quite soon to preparing a ruling. There is one facet of the case that must completed before it does so: the panel has asked both sides to submit, by Dec. 2, new legal briefs on the question of whether the Proposition 8 backers have a legal right to continue with their appeals, especially in the wake of a ruling last week by the California Supreme Court that they do have that right, at least under California state law.

The Circuit Court has scheduled a hearing for Dec. 8 in a third Proposition 8 case, involving a challenge by the measure’s backers to a separate ruling by Judge Ware ordering the public release of a videotape recording made of the entire trial before Judge Walker. Media organizations are pressing for that release, along with the two same-sex couples who filed the lawsuit. (That case also carries the title Perry, et al., v. Brown, et al., docket 11-17255.)

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.